UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD O. MANNING, M.D.;

RALEIGH WOMEN'S HEALTH

ORGANIZATION, INCORPORATED; TAKEY

CRIST, M.D., on their own behalf

and on behalf of their minor

patients,

Plaintiffs-Appellants,

v.

JAMES B. HUNT, JR., Governor of the

State of North Carolina, in his

official capacity; RONALD L. MOORE,

District Attorney of Buncombe

No. 95-3181

County, in his official capacity;

PETER S. GILCHRIST, III,

Mecklenburg County District

Attorney, in his official capacity;

C. WILLOUGHBY, JR., Wake County

District Attorney, in his official

capacity; WILLIAM H. ANDREWS,

Onslow County District Attorney, in

his official capacity,

Defendants-Appellees.

NORTH CAROLINA RIGHT TO LIFE,

INCORPORATED,

Amicus Curiae.
RICHARD O. MANNING, M.D.;

RALEIGH WOMEN'S HEALTH

ORGANIZATION, INCORPORATED; TAKEY

CRIST, M.D., on their own behalf

and on behalf of their minor

patients,

Plaintiffs-Appellants,

v.

JAMES B. HUNT, JR., Governor of the

State of North Carolina, in his

official capacity; RONALD L. MOORE,

District Attorney of Buncombe

No. 95-3182

County, in his official capacity;

PETER S. GILCHRIST, III,

Mecklenburg County District

Attorney, in his official capacity;

C. WILLOUGHBY, JR., Wake County

District Attorney, in his official

capacity; WILLIAM H. ANDREWS,

Onslow County District Attorney, in

his official capacity,

Defendants-Appellees.

NORTH CAROLINA RIGHT TO LIFE,

INCORPORATED,

Amicus Curiae.

Appeals from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CA-95-229-1-T)

Argued: April 3, 1996

Decided: May 22, 1996

Before WIDENER, MURNAGHAN, and WILLIAMS,

Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion. Judge

Widener wrote a concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Deborah Koff Ross, ACLU-NC LEGAL FOUNDATION, Raleigh, North Carolina, for Appellants. Grady L. Balentine, Jr., Assistant Attorney General, Raleigh, North Carolina, for

Appellees. ON BRIEF: C. Frank Goldsmith, Marion, North Carolina;

Ellen W. Gerber, High Point, North Carolina; Catherine Weiss,

Laura K. Abel, Reproductive Freedom Project, AMERICAN CIVIL

LIBERTIES UNION FOUNDATION, New York, New York, for

Appellants. Michael F. Easley, North Carolina Attorney General,

Mabel Y. Bullock, Special Deputy Attorney General, Raleigh, North

Carolina, for Appellees. Paul Stam, Jr., Theodore S. Danchi, Apex,

North Carolina, for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal involves a facial challenge to the constitutionality of

North Carolina's Act to Require Parental or Judicial Consent for an

Unemancipated Minor's Abortion (the Act), 1995 N.C. Adv. Legis.

Serv. 108 (to be codified at N.C. Gen Stat. § 90-21.6 to .10). Appellants, two doctors who perform abortions on unemancipated minors

and a provider of abortion services, appeal an order of the district

court denying in part their request for an order enjoining enforcement

of the Act pending resolution of their constitutional challenge. Appellees, the Governor of North Carolina and several district attorneys,

cross-appeal the portion of the district court's order granting injunctive relief with respect to one provision of the Act. Because we con-

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clude that the district court erred in its application of the standards

governing the grant or denial of a preliminary injunction, we vacate

the order granting in part and denying in part preliminary injunctive

relief and remand for further proceedings.

I.

The Act, adopted during the 1995 session of the North Carolina

General Assembly, provides that before an unemancipated minor1

may obtain an abortion, she must first give her own consent and

obtain the consent of:

(1) A parent with legal custody of the minor; or

(2) The legal guardian or legal custodian of the minor; or

(3) A parent with whom the minor is living; or

(4) A grandparent with whom the minor has been living

for at least six months immediately preceding the date of the

minor's written consent.

N.C. Gen. Stat. § 90-21.7(a). A pregnant minor may petition a state

district court judge2 for a waiver of the parental consent requirement

if none of the persons capable of giving consent is available, all of the

persons capable of giving consent refuse to do so, or the minor does

not wish to obtain consent from any person capable of giving consent.

Id. § 90-21.7(b).

_________________________________________________________________

1 The Act defines an "unemancipated minor" as any person under the

age of 18 who has not been married and who has not been emancipated

pursuant to North Carolina law. N.C. Gen. Stat.§ 90-21.6(1).

2 The Act provides that jurisdiction over a petition for waiver of the

parental consent requirement rests with "the district court judge assigned

to the juvenile proceedings in the district court where the minor resides

or where she is physically present." N.C. Gen. Stat. § 90-21.7(b). North

Carolina district courts have original jurisdiction over, inter alia, civil

suits in which the amount in controversy is $10,000 or less, domestic

relations matters, and misdemeanor criminal actions. N.C. Gen Stat.

§§ 7A-243, -244, & -272 (Michie 1995).

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In ruling on the petition for a waiver of the parental consent

requirement, the district court judge must conduct a hearing to receive

evidence concerning the minor's "emotional development, maturity,

intellect, and understanding . . . ; the nature, possible consequences,

and alternatives to the abortion; and any other evidence that the court

may find useful in determining whether the parental consent requirement shall be waived." Id. § 90-21.8(d). The district court judge may

waive the parental consent requirement if he finds that the minor is

sufficiently mature and well informed to make her own decision

regarding an abortion, that a waiver of the parental consent requirement is in the minor's best interests, or that the minor is a victim of

rape or felonious incest. Id. § 90-21.8(e). If the district court judge

finds that the minor has been a victim of rape or incest, he is required

to report this finding to the Director of the Department of Social Services (DSS). Id. § 90-21.8(f).3 The district court judge must set forth

his ruling and the evidence supporting it in a written order. Id.

The district court judge must rule within seven days of the filing

of the petition. Id. § 90-21.8(d). If the district court judge denies the

petition, the minor may appeal to the superior court; in order to pursue such an appeal, she must file a notice of appeal to the superior

court within twenty-four hours of the district court judge's decision.

Id. § 90-21.8(h). The superior court must hold a de novo hearing

within seven days of the filing of the notice of appeal. Id. By rule, the

North Carolina Supreme Court has provided that the superior court

must issue its ruling within forty-eight hours of the hearing. During

the entire course of proceedings on the petition, the minor is entitled

to the assistance of a guardian ad litem, an attorney, or both, at no

cost. Id. § 90-21.8(c). The Act also provides that proceedings before

the district court judge and the superior court are to be confidential,

id. § 90-21.8(d), (h), and that the minor may request that her parent,

guardian, or custodian not be notified of the proceedings, id. § 90-

21.8(g).

_________________________________________________________________

3 The Act requires only that a finding of incest be reported to DSS.

Rules promulgated by the North Carolina Supreme Court require a finding of rape to be reported, as well. In addition, North Carolina law

imposes a duty upon "[a]ny person or institution who has cause to suspect that any juvenile is abused" to report those suspicions to DSS. N.C.

Gen. Stat. § 7A-543 (Michie 1995).

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Appellants challenged the validity of the Act under the First,

Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution,

seeking preliminary and permanent injunctive relief, a judgment

declaring the Act unconstitutional, and attorneys' fees. Appellants

argued that the Act imposed an undue burden4 on a pregnant minor's

right to an abortion by: (1) failing to provide a clear definition of the

term "parent with custody"; (2) failing to provide an adequate, expeditious, and confidential bypass for a minor who appeals the denial of

her petition to the North Carolina Court of Appeals or Supreme

Court; (3) requiring that the minor appeal an adverse decision by the

district court judge within twenty-four hours; (4) requiring that the

minor undergo a de novo hearing before the superior court; (5) requiring that the minor state affirmatively that she does not want her parent, guardian, or custodian to be notified that she has petitioned for

a waiver of the parental consent requirement; and (6) requiring that

a finding of rape or incest be reported to DSS (the"reporting requirement").

The district court granted preliminary injunctive relief with respect

to the reporting requirement, but denied Appellants' request for a preliminary injunction in all other respects. We subsequently granted

Appellees' motion for a stay of injunction pending appeal. In challenging the district court's ruling, Appellants argue first that the district court erred in its application of the standard enunciated in

Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189

(4th Cir. 1977), for determining whether injunctive relief is appropriate, and second, that injunctive relief should have been granted with

respect to all provisions of the Act. On cross-appeal, Appellees contend that the district court erred in preliminarily enjoining the reporting requirement. Because we find Appellants' first challenge requires

us to vacate the district court's order in its entirety, we do not address

in detail the remaining contentions of the parties.

_________________________________________________________________

4 See Planned Parenthood v. Casey , 112 S. Ct. 2791, 2819 (1992) (setting forth "undue burden" standard governing constitutionality of laws

restricting access to abortions).

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II.

A.

We find it useful to preface our examination of the district court's

application of the Blackwelder standard with a discussion of the applicable law. Under the well-settled law of this circuit, the consideration

of four factors governs the district court's decision whether to grant

a preliminary injunction:

"(1) the likelihood of irreparable harm to the plaintiff if the

preliminary injunction is denied,

(2) the likelihood of harm to the defendant if the requested

relief is granted,

(3) the likelihood that the plaintiff will succeed on the

merits, and

(4) the public interest."

Direx Israel, Ltd. v. Breakthrough Medical Corp. , 952 F.2d 802, 812

(4th Cir. 1991) (quoting Rum Creek Coal Sales, Inc. v. Caperton, 926

F.2d 353, 359 (4th Cir. 1991)). As we explained in Direx Israel, the

district court's first task is to determine what harm will be suffered

by the plaintiff in the event that a preliminary injunction is denied.

Upon determining that the denial of a preliminary injunction will

cause the plaintiff irreparable harm that is "`neither remote nor speculative, but actual and imminent,'" the district court must proceed to

balance that harm against the harm to the defendant resulting from the

grant of a preliminary injunction. Id. (quoting Tucker Anthony Realty

Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). The result

of this balancing determines the degree to which the plaintiff must

show a likelihood of success on the merits in order to obtain a preliminary injunction:

"If, after balancing those two factors [i.e., irreparable harm

to plaintiff against harm to the defendant], the balance `tips

decidedly' in favor of the plaintiff, a preliminary injunction

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will be granted if `the plaintiff has raised questions going to

the merits so serious, substantial, difficult and doubtful, as

to make them fair ground for litigation and thus for more

deliberate investigation.' As the balance tips away from the

plaintiff, a stronger showing on the merits is required."

Id. at 812-13 (quoting Rum Creek, 926 F.2d at 359).

We emphasized in Direx Israel that the importance of the balanceof-hardships evaluation mandates that it "precede the determination of

the degree by which the plaintiff must establish the likelihood of success on his part." Id. at 813; see also Hughes Network Sys., Inc. v.

Interdigital Communications Corp., 17 F.3d 691, 693 (4th Cir. 1994)

(noting that "[t]he `balance of hardships' reached by comparing the

relevant harms to the plaintiff and defendant is the most important

determination" in applying the Blackwelder factors). Indeed, in

Blackwelder we vacated the district court's order denying a preliminary injunction based in part on the court's failure to balance the

hardships before considering the plaintiff's likelihood of success on

the merits. See Blackwelder, 550 F.2d at 195; see also Hazardous

Waste Treatment Council v. South Carolina, 945 F.2d 781, 788 (4th

Cir. 1991) (holding that court could not affirm the grant of a preliminary injunction "in the absence of evidence that the district court

engaged in a specific test of the balance of the hardships" and

remanding for consideration of the hardships); Maryland Undercoating Co. v. Payne, 603 F.2d 477, 482 (4th Cir. 1979) (vacating order

granting preliminary injunction in part because the district court failed

to balance the hardships). As we later explained in Direx Israel, vacatur was necessary in Blackwelder because"[u]ntil that balance of

harm has been made, the district judge cannot know how strong and

substantial must be the plaintiff's showing of `likelihood of success.'"

Direx Israel, 952 F.3d at 814.

We review for abuse of discretion the district court's order granting

in part and denying in part injunctive relief. In the context of the grant

or denial of a preliminary injunction, however, abuse of discretion is

not a "`merely perfunctory'" standard of appellate review; rather, we

must carefully examine the district court's order to determine whether

the court complied with established principles. Id. at 814-15 (quoting

Roland Machinery Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir.

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1984)). We will not hesitate to consider the district court's decision

an abuse of discretion if it was made through application of an

improper legal standard. See Rum Creek Coals Sales, Inc. v.

Caperton, 926 F.2d 353, 358 (4th Cir. 1991).

B.

Here, a cursory examination of the district court's order reveals

that the court improperly applied the Blackwelder test by considering

first whether Appellants had shown a likelihood of success on the

merits. See Manning v. Hunt, No. 1:95cv229-T, at 12 (W.D.N.C. Nov.

30, 1995) ("In order to conduct the balancing test required by Rule

65(a), Federal Rules of Civil Procedure, it is necessary for this court

to first consider whether plaintiffs are likely to succeed on the merits

of their claims."). The district court compounded this error by failing

to articulate the degree of likelihood of success on the merits Appellants needed to show in order to obtain injunctive relief; rather, with

respect to each issue, the district court merely noted whether Appellants had, or had not, shown a likelihood of success. Moreover, the

district court failed to balance the hardships with respect to all of the

issues, doing so only as to the reporting requirement, the only one of

Appellants' claims the district court found to have a likelihood of success. Furthermore, the balancing conducted by the district court with

respect to the reporting requirement was inadequate in at least two

respects. First, the balancing followed the district court's determination regarding Appellants' likelihood of success on the merits of that

issue, rather than preceding that determination, as Blackwelder

directs. Second, the district court's balancing appears to have been

guided almost entirely by its conclusion that Appellants were likely

to succeed on the merits of their challenge to the reporting requirement. We have previously expressed disapproval of just such a conflation of the balance of hardships and the likelihood of success. See

Direx Israel, 952 F.2d at 817 (concluding that the district court's

determination that the balance of hardships favored plaintiffs based

on its finding that plaintiffs were likely to succeed on the merits "was

clear error in the application of the hardship test").

III.

We conclude that the district court incorrectly applied the

Blackwelder test in ruling on Appellants' motion for preliminary

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injunction. Accordingly, we vacate the district court's order in its

entirety and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

WIDENER, Circuit Judge, concurring:

I concur in the result.

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